APPEAL from the Circuit Court for the Western District of Tennessee; the case being thus:

The Judiciary Act of 1789 [1] gives the Circuit Courts jurisdiction where the suit is between a citizen of the State where the suit is brought and a citizen of another State; and enacts that no civil suit shall be brought in them against an inhabitant of the United States by original process in any other district than that whereof he is an inhabitant, or in which he may be found at the time of serving the writ.

'That where in any suit in law or equity, commenced in any court of the United States, there shall be several defendants, any one or more of whom shall not be inhabitants of, or found within, the district where the suit is brought, or shall not voluntarily appear thereto, it shall be lawful for the court to entertain jurisdiction, and proceed to the trial and adjudication of such suit between the parties who may be properly before it; but the judgment or decree rendered therein, shall not conclude or prejudice other parties not regularly served with process, or not voluntarily appearing to answer,' &c.

These provisions as to jurisdiction being in force, one Joseph J. Andrews, owner of a hotel in Memphis, leased it for five years, from 1st of January, 1859, to P. Reed and H. W. Bryson; these last giving their notes for the amount of the rent. After Reed and Bryson had possession for some time, they sub-let it to a certain Stephen M. Jones, at the same rent which they had paid, and took his notes to themselves for the same sum that they were bound to pay Andrews by their own. The troubles of the rebellion coming on, matters got disarranged. Jones, according to his own account, having left Memphis, temporarily got shut out of the town by the Federal army, and during this enforced absence was dispossessed of the hotel and greatly injured by Andrews, who seized and sold very valuable personal property of his left on the premises. However these facts (which Andrews denied) might have been, it was admitted that the rent not being long paid in form, Andrews sued Reed and Bryson on their notes given to him, and got judgment by default. On this judgment so got, he sued out a writ of garnishment for the professed purpose of seizing in their hands the notes of Jones. Hereupon Jones filed a bill in the same court, the court below, alleging that Reed and Bryson had transferred his notes (Jones's), given to them for the sub-lease, to Andrews in payment of their own notes to him for the lease in chief; that Andrews had thus no claim against Reed and Bryson when he sued them; that the judgment recovered by him against them was by collusion, and was contrived for the purpose of garnisheeing his, Jones's, notes, pretended to be in their hands, and that all this was done to avoid on the part of Andrews a direct suit against him, the complainant, Jones, by reason of the fact that as against Andrews, he, the complainant, Jones, had a good defence to the notes and a set-off (on account of the seizure and sale of his furniture, and expulsion of him from the premises), that would largely exceed the amount of the notes. His bill accordingly prayed for an injunction against the garnishee proceedings, for the delivery up of his notes, and for the establishment of his set-off against Andrews.

The suit was entitled at the beginning,

'Stephen M. Jones, citizen and resident of Richmond County, Georgia,

vs.

Joseph Andrews, citizen and resident of City and County and State of New York; P. Reed and H. W. Bryson, both citizens and residents of Shelby County, Tennessee.'

And the prayer of the bill began thus:

'The premises considered, complainant prays that Joseph Andrews, a resident and citizen of the city, county, and State of New York, and the said Reed and Bryson, both of whom are residents of Shelby County, in the State of Tennessee, be made parties defendant, by due process and publication,' &c.

Andrews (the resident of New York) was not served with process; but, as the record stated,

'Comes and moves the court here to dismiss the bill of the plaintiff for want of jurisdiction, apparent on the face of it;' and for causes for such motion showed (among others),

(1.) The bill does not aver the citizenship of the plaintiff, nor does it show such facts in regard to the citizenship or residence of the defendant as gives the court jurisdiction.

(2.) The plaintiff shows by his bill that he has an adequate remedy at law.

The court below dismissed the bill for want of jurisdiction over the parties, as well as for want of equitable jurisdiction over the subject-matter of the bill; but without prejudice to the right of the complainant to institute proper proceedings to assert his rights. And from the decree of dismissal, this writ was taken.

Messrs. Albert Pike and R. W. Johnson, in support of the action of the court below, in dismissing the bill for want of jurisdiction over the parties, contended on this point:

1st. That the citizenship of the parties was not sufficiently alleged in the bill. That a mere incidental and sidewise mention of citizenship in a caption of the bill-the only presentation of citizenship of all the parties here-was no averment or allegation of citizenship; that it could not be regarded as traversable, or an allegation for the falseness of which the party thus incidentally mentioning it would be responsible.

2d. That, if sufficiently alleged, the court had no jurisdiction over Andrews, the principal defendant, who was a citizen of New York, and not a citizen of Tennessee, where the suit was brought. That under the Judiciary Act of 1789, it was certain that if there were more than one plaintiff, or more than one defendant, the Circuit Court could not take jurisdiction unless each of the parties was competent to sue or liable to be sued there; and that the act of February 28, 1839, wrought no change in the jurisdiction of the court, as respects the character of parties; that it only obviated the difficulties arising from inability to join or serve those, of several defendants, who might not reside or be found within the district, or should not choose voluntarily to appear.